The Karnataka High Court has reiterated that secondary evidence under Section 65 of the Indian Evidence Act, 1872 cannot be admitted without foundational pleadings establishing the unavailability of the original document. The judgment underscores the necessity of disclosing circumstances under which the original is unavailable before seeking to rely on secondary evidence, particularly when the application is filed belatedly after the plaintiff’s evidence is concluded.
Background & Facts
The Dispute
The petitioner, Ravindra s/o Yallanagouda Patil, instituted a suit for specific performance of an agreement of sale against the respondents. During the trial, after concluding his evidence, the petitioner filed an application (I.A. No. 3) under Section 65 of the Indian Evidence Act seeking permission to produce a xerox copy of a receipt dated 02.11.2011 as secondary evidence. The receipt acknowledged partial payment of the sale consideration under the agreement.
Key Facts
- The petitioner claimed that the original receipt was entrusted to Chandrasekhar Aramani, his father-in-law.
- The petitioner sought to produce a xerox copy of the receipt as secondary evidence.
- The application (I.A. No. 3) was filed after the petitioner had concluded his evidence and the matter was posted for the defendants’ evidence.
- The plaint did not contain any averment regarding the custody or possession of the original receipt by Chandrasekhar Aramani.
Procedural History
- Original Suit: The petitioner filed O.S. No. 114/2018 for specific performance before the Principal Senior Civil Judge, Hubballi.
- 15.03.2024: The petitioner filed I.A. No. 3 under Section 65 of the Indian Evidence Act seeking permission to produce secondary evidence.
- 29.11.2024: The trial court rejected I.A. No. 3, holding that the petitioner failed to satisfy the statutory requirements for admitting secondary evidence.
- 2025: The petitioner filed Writ Petition No. 104556 of 2025 under Articles 226 and 227 of the Constitution of India challenging the trial court’s order.
Relief Sought
The petitioner sought:
- Quashing of the trial court’s order dated 29.11.2024 rejecting I.A. No. 3.
- Permission to produce the xerox copy of the receipt dated 02.11.2011 as secondary evidence.
- Directions to the trial court to admit the secondary evidence and proceed with the suit on merits.
The Legal Issue
The central question was whether secondary evidence under Section 65 of the Indian Evidence Act can be admitted without foundational pleadings establishing the unavailability of the original document, particularly when the application is filed belatedly after the plaintiff’s evidence is concluded.
Arguments Presented
For the Petitioner
- Contended that the original receipt was entrusted to Chandrasekhar Aramani, the petitioner’s father-in-law, and thus unavailable.
- Argued that the xerox copy should be admitted as secondary evidence under Section 65 of the Indian Evidence Act.
- Relied on precedents to assert that secondary evidence can be admitted if the original is unavailable.
For the Respondents
- Opposed the application on the ground that the plaint lacked foundational pleadings regarding the custody or possession of the original receipt.
- Argued that the petitioner failed to satisfy the statutory requirements under Section 65 of the Indian Evidence Act for admitting secondary evidence.
- Contended that the application was filed belatedly, after the petitioner’s evidence was concluded, without any satisfactory explanation.
The Court's Analysis
The Court examined the statutory framework under Section 65 of the Indian Evidence Act, which permits secondary evidence only when the original document is unavailable due to specific circumstances, such as:
- Loss or destruction of the original.
- The original being in the possession of a third party who refuses to produce it.
- The original being beyond the court’s jurisdiction.
The Court emphasized that foundational pleadings are mandatory to establish these circumstances. In this case, the plaint did not contain any averment regarding the custody or possession of the original receipt by Chandrasekhar Aramani. The Court observed:
"A party seeking to adduce secondary evidence must lay a proper factual foundation in the pleadings by specifically disclosing the circumstances under which the original document is unavailable and the necessity to rely upon secondary evidence."
The Court further noted that the application was filed belatedly, after the petitioner’s evidence was concluded, without any satisfactory explanation for the delay. The Court relied on settled precedents, including decisions of the Supreme Court and the Karnataka High Court, which hold that secondary evidence cannot be admitted without foundational pleadings.
The Court concluded that the trial court’s order rejecting I.A. No. 3 was legally sound and did not suffer from any jurisdictional error, perversity, or patent illegality warranting interference under Articles 226 and 227 of the Constitution of India.
The Verdict
The writ petition was dismissed as devoid of merits. The Court clarified that its observations were confined to the adjudication of I.A. No. 3 and would not prejudice the trial court’s adjudication of the suit on merits. The petitioner was left at liberty to establish his case through other admissible evidence as permitted by law.
What This Means For Similar Cases
Foundational Pleadings Are Non-Negotiable
- Practitioners must ensure that pleadings explicitly disclose the circumstances under which the original document is unavailable before seeking to rely on secondary evidence.
- Mere assertion that the original is with a third party is insufficient; specific details about custody, possession, or unavailability must be pleaded.
Timing of the Application Matters
- Courts are unlikely to entertain applications for secondary evidence filed belatedly, especially after the party’s evidence is concluded.
- If secondary evidence is necessary, the application should be filed at the earliest opportunity, preferably at the stage of framing issues or leading evidence.
Secondary Evidence Cannot Be a Substitute for Due Diligence
- Parties cannot rely on secondary evidence as a last-minute attempt to fill gaps in their case.
- The burden of proof lies on the party seeking to adduce secondary evidence to establish the unavailability of the original document through proper pleadings and evidence.
Trial Courts Will Scrutinize Compliance with Section 65
- Trial courts are expected to strictly enforce the requirements of Section 65 of the Indian Evidence Act.
- Orders rejecting applications for secondary evidence are unlikely to be interfered with under Articles 226 and 227 unless there is a jurisdictional error, perversity, or patent illegality.
